May 15, 2015

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Justice Bob Utter and the Rule of Law

Originally presented at Justice Utter’s April 29, 2015, memorial service, at the Temple of Justice.

I have yet to meet a person who knew Bob Utter who has failed at some point to mention the ever-present twinkle in his eye.

I have yet to meet a legal professional who knew Bob Utter who has failed to admire his intellect, his discipline, his passion for justice.

And when I mention that admiration, I’m not just talking about those of us in the Northwestern corner of the United States. Bob Utter worked on a much broader scale, both on the court and off.

Bob was one of the founders and early leaders of the American Bar Association’s Central and East European Law Initiative, known by its acronym, CEELI. It is now known as the Rule of Law Initiative, ROLI, and undertakes projects around the world.

Bob’s work with the ABA started shortly after the Berlin Wall fell in 1989. He started providing analysis and commentary on draft laws and constitutional provisions, even entire constitutions, prepared by former Eastern bloc countries. But Bob didn’t stay in the comfort of his home to do this. No, he went the extra mile. Or, should I say, the extra tens of thousands of miles, traveling scores of times to these countries.

I personally had the true pleasure and great privilege of traveling with him on one such trip. In 1995, a group of U.S. judges and lawyers traveled to Kazakhstan and Kyrgyzstan to put on mock trials and to give seminars demonstrating independent legal advocacy and an independent judiciary.

On numerous occasions, we would arrive in a jurisdiction and be setting up, when I would look around, and say, “Where’s Bob?” He was nowhere to be found. We would go on with our preparations, and when Bob reappeared we invariably found that he had been conferring confidentially with a local chief justice or other judicial leader about legal, political, and strategic issues of the day, on the order of what the United States dealt with at the time of Marbury v. Madison — that is, how to establish an important principle, but to do so without so threatening the powers that be that the principle is lost. Bob was widely known and clearly trusted for both his legal and his practical wisdom. His reputation preceded him.

Bob continued this type of work for decades with legal professionals, not just in Eastern Europe. Among other things, he joined a project to preserve for history materials relating to the operations of the International Criminal Tribunal for Rwanda, following upon that nation’s genocide of 1994. And he also made multiple trips to a newly established judicial center in Prague to train judges from the Middle East and elsewhere.

I conferred recently with Judge Judith Chirlin, a judge who had also taught in Prague, to ask her about Judge Utter’s work there. She told me many stories, but I will relate just two of them, one relatively light and personal, the other more significant. Both of these stories happen to have involved a judge named Mohamed Amin Rizgar, one of a group of more than a dozen Iraqi judges who attended a program Bob led, called “Judging in a Democratic Society.” One topic in that program addressed the question of how judges should respond to a free press in an open society — that is, what do you do when you are ambushed by the press? “Judge Bob,” as he was known to them, instructed, “Remain standing, don’t get too comfortable, answer a few questions on standard court procedure, say nothing specific about particular cases, and then get back to work in chambers.”

Only a short time later, when she was back in the U.S., Judge Chirlin started chuckling upon reading an article in the LA Times about what happened when members of the international press had corralled this particular judge and asked him about some pending legal proceedings in Iraq. The article reported that the press had invited him to meet with them, and that he had responded, “No, thank you, I prefer to remain standing, I will answer a few questions about legal process and then return to work, but I can’t discuss any particular case.”

Now, what proceeding was this? Why was the LA Times writing about some obscure Iraqi judge? Well, at this point Judge Rizgar was no longer obscure. He had just been appointed to conduct the trial of Saddam Hussein. Unfortunately, as it turns out, while Judge Rizgar worked long and hard at his duties, he ultimately resigned from this position. This is what PBS reported in 2006:

More than anyone else, Judge Rizgar Amin was the public face of the court trying Saddam Hussein and 7 other defendants in Baghdad. His polite evenhandedness made him an attractive face for justice in the “new Iraq.” But the light touch and sincere commitment to a fair trial that won praise from international jurists also earned brickbats from the Iraqi government and Iraqi public opinion. His resignation exposes some of the serious institutional failings and political divisions that are plaguing the Iraqi tribunal.

Some time after Judge Rizgar’s resignation, Judge Chirlin happened to meet up with him at an international legal conference and asked him about his resignation. In response, he talked of what he had learned from “Judge Bob” and what he had learned in Prague. He said that he had learned what it means to be an independent judge, and that he had been profoundly disappointed in Baghdad when he realized that pressures from the military and the interim government would prevent him from running that trial like he knew a good independent judge should do. Because of this pressure, he felt he had no choice but to resign. And so he did.

“Judge Bob” knew that establishing the rule of law would not be an easy straight line or forward progress. He taught for the long haul. And he taught that at certain times the simple refusal to do the wrong thing is the closest one can come to the true rule of law.

I started my comments today with a reference to the twinkle in Bob’s eye. Let me end with another observation. Nobody could spend significant time with Bob Utter, the man and the judge, without seeing something else in his eyes — tears. Bob cared deeply about others. He often teared up when ending a program, knowing the risks many judges would face on returning to their home countries (at least three of the Iraqi judges he taught have since died in the unrest that continues to plague their country). Iraqi judges commented upon his tearing up, they in turn having been moved that an American cared enough to feel so strongly about justice in their country.

We will all miss Bob Utter, but we will not be alone. Lawyers and judges and others around the world will also miss him deeply.

About the Author

Robert H. Alsdorf. Judge Robert H. Alsdorf (ret.) has over 40 years of legal experience, including nearly 15 years as a general jurisdiction trial judge who presided over numerous difficult and high-profile civil and criminal trials. While on the bench, he received four Judge of the Year awards. Since retiring from the court in 2005, Judge Alsdorf has resumed work as an arbitrator, mediator and Special Master on a wide range of complex commercial, environmental, and other protracted or difficult disputes, and continues to engage in professional education and pro bono programs. He can be reached at ralsdorf@alsdorfadr.com.

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